The Taking Clause

Question 1

Fifth Amendment Takings Clause - Basic Significance

Answer 1

• provides that private property may only be taken:
  1) for public use AND
  2) gov must pay just compensation
• applies to states via 14th Amendment

Question 2

Property Covered by the Takings Clause

Answer 2

Includes:
- personal property
- real property
- certain intangibles

Question 3

Confiscation or Occupation

Answer 3

• physical takings

Taking will be found if there is:
- a confiscation of a person’s property OR
- a permanent or regular physical occupation of a person’s property by the government

Question 4

Temporary Occupations

Answer 4

May be a taking -> depends on factors like:
- degree of invasion
- duration
- gov’s intention
- foreseeability of result
- character of the property
- interference with the use of the property

Question 5

Development Exceptions

Answer 5

• municipalities often attempt to condition building or development permits on a landowner’s:
  1) conveying title to part of the property to the gov (ex to use as streets) OR
  2) granting public an easement to access the property

Such conditions constitute a taking UNLESS
1) gov can show essential nexus between the condition and the proposed development
2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer

Question 6

Emergency Exception

Answer 6

• taking less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, such as war

Question 7

Use Restrictions

Answer 7

• may constitute regulatory takings -> examine whether denial of all economic value and balancing test for decreasing economic value

Question 8

Regulatory Takings - Denial of All Economic Value

Answer 8

• if gov reg denies landowner of all economically viable use of their land, the reg amounts to a taking
  -> UNLESS principles of nuisance or property law make the use prohibitable anyway
• note though that TEMPORARILY denying owner of all econ use of property does not constitute a per se taking -> court will examine + weigh the circumstances (planners’ good faith, reasonable expectations of owners, length of delay, delay’s actual effect on value of property, etc.) to determine whether fairness and justice require just compensation

Question 9

Regulatory Takings - Decreasing Economic Value

Answer 9

• regs that merely decrease value of property do not amount to a taking if they leave an economically viable use for the property

Court will consider:
1) gov interests sought to be promoted
2) diminution in value to owner AND
3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 10

Public Use Requirement for Takings

Answer 10

• takings can only be done for public use, BUT this requirement is liberally construed
• if gov’s action is rationally related to a legitimate public purpose, the public use req is satisfied
• authorized takings by private enterprises are included if they work to the public advantage (ex: railroads + public utilities)

Question 11

Just Compensation

Answer 11

• measured by the fair market value of the property taken at the time of the taking
• based on the loss to the owner
• increases in value to the owner’s remaining property as a result of the taking are not considered

Question 12

Inverse Condemnation

Answer 12

• normally, when gov acts under power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation
• when property is taken by occupation or regulation without condemnation proceedings, landowner can bring an action for inverse condemnation
  -> if court determines that gov action amounted to taking, gov required to either a) pay property owner just comp for the property OR b) terminate the reg and pay the owner for damages that occurred while the reg was in effect